FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLY LOUISE LONG,

Petitioner-Appellant,

v.

DEBORAH K. JOHNSON,

Warden,

Respondent-Appellee.

No. 12-55820

D.C. No.

5:10-cv-00277-PSG-SP

ORDER AND

OPINION

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

July 8, 2013—Pasadena, California

Filed December 2, 2013

Before: Susan P. Graber, Johnnie B. Rawlinson,

and Paul J. Watford, Circuit Judges.

Order;

Opinion by Judge Graber;

Concurrence by Judge Watford
2 LONG V. JOHNSON

SUMMARY*

Habeas Corpus

The panel redesignated its Memorandum Disposition,

filed July 24, 2013, as an authored opinion with

modifications, and denied a petition for panel rehearing and

for rehearing en banc as moot.

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a murder

conviction. The panel held that, viewing the evidence in the

light most favorable to the prosecution, the California Court

of Appeal reasonably held that a rational jury could find

beyond a reasonable doubt that petitioner murdered her livein boyfriend.

Judge Watford concurred, but had “grave doubts” about

whether the state has convicted the right person, based on the

timing of events and the fact that the only witness who placed

petitioner at her home early enough to commit the crime and

eliminate all traces of her involvement never testified at trial.

COUNSEL

Alexander Simpson (argued) andAlissaBjerkhoel, California

Innocence Project, San Diego, California, for PetitionerAppellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LONG V. JOHNSON 3

Arlene A. Sevidal, Deputy Attorney General (argued),

Kamala D. Harris, Attorney General of California, Julie L.

Garland, Senior Assistant Attorney General, and Kevin

Vienna, Supervising Deputy Attorney General, for

Respondent-Appellee.

ORDER

The Memorandum disposition filed July 24, 2013, is

redesignated as an authored opinion by Judge Graber, with

modifications. The opinion is to be filed concurrently with

this order.

Appellant’s petition for panel rehearing and petition for

rehearing en banc filed August 7, 2013, are DENIED as

moot. The time for filing a petition for rehearing and petition

for rehearing en banc shall start anew as of the filed date of

the opinion.

OPINION

GRABER, Circuit Judge:

A jury convicted Petitioner Kimberly Louise Long of

second-degree murder for the bludgeoning death of her

boyfriend, Oswald “Ozzy” Conde, in the home that they

shared. The California state courts affirmed her conviction

on appeal, and the federal district court then denied her

petition for a writ of habeas corpus. In this court, Petitioner

argues that the district court erred because the evidence

adduced at trial was insufficient to permit a rational jury to
4 LONG V. JOHNSON

find her guilty beyond a reasonable doubt. Reviewing de

novo the district court’s decision to deny the petition for a

writ of habeas corpus, Lambert v. Blodgett, 393 F.3d 943, 964

(9th Cir. 2004), we affirm.

STATEMENT OF FACTS

Petitioner and her boyfriend Conde lived together. On

October 5, 2003, Petitioner, Conde, and their friend Jeffrey

Dills1spent the day riding motorcycles and drinking heavily. 

While at a bar, Petitioner and Conde argued about her

flirtatiousness toward other men. Petitioner became upset

and rode to her house with a friend of Dills’. Dills and Conde

followed separately on their motorcycles. When Conde

arrived home, he continued the argument with Petitioner in

their driveway. Petitioner was still very angry because Conde

had embarrassed her in front of other people. She pushed and

yelled at Conde and told him that he was a “loser” who had

no job and did not pay his fair share and that she wanted him

out of her house. Petitioner hit Conde with her hand, her

purse, her motorcycle helmet, and a novelty hat that she was

carrying, and then threw things at him.2 Dills became

1 Dills died in a motorcycle accident after the preliminary hearing but

before the trial. His preliminary hearing testimony was read to the jury. 

The propriety of that procedure is not challenged here.

2 There also was evidence that Petitioner had been physically violent

with Conde in the past. For example, one of Conde’s children told the

police that Petitioner once punched Conde in the face, leaving him with

a bloody nose. In addition, Petitioner’s ex-husband, Joe Bugarski,

testified that, during one argument, Petitioner tackled Bugarski off his

bicycle, after which he slapped her, and she hit him in the head with a

cordless phone and retrieved a butter knife with which she threatened him. 

On another occasion, Petitioner threw a plate of food at her ex-husband

and threatened him with a baseball bat.
LONG V. JOHNSON 5

concerned that Conde might hit Petitioner back, so he stepped

between them. Petitioner decided to depart with Dills, and

they left for his house.

At Dills’ house, Petitioner and Dills had a drink and got

into his spa. She continued to complain about Conde’s not

paying his share. Then she and Dills had a sexual encounter,

which she ended abruptly by telling Dills that she had to

return home because she had forgotten that her ex-husband

was supposed to drop off their children, even though she

knew that this was not true. While Petitioner dressed, she

said that she was so mad at Conde she could “kick his ass.”

Dills estimated that he dropped Petitioner off at her house

between 1:20 and 1:30 a.m. on October 6, 2003. As he

approached the house, Dills turned off his motorcycle and

coasted, so as not to awaken Conde or the neighbors. 

Petitioner could not find her cell phone. Dills turned his

headlight up into the bushes, where Petitioner had thrown

things at Conde earlier, to help her find the phone. Dills then

watched her enter the house through the front door and saw

her silhouetted inside the house. Dills drove away and

returned to his own home, where he noticed, while setting an

alarm, that it was 1:36 a.m. The trip from Petitioner’s house

to Dills’ house was two and a half to three miles and took 10

to 15 minutes. A neighbor of Petitioner’s heard a loud

motorcycle going down the road at some time between 1:20

and 1:30 a.m. and saw the motorcycle driving away from

Petitioner’s house.3

 

3

 No one, including Petitioner’s neighbors, heard her dog Otto bark on

the night of the murder. He barked when someone he did not know went

onto her property. After the murder, Otto barked and howled at the police

investigator.
6 LONG V. JOHNSON

At 2:09 a.m., Petitioner called 911 to report that she had

“just” returned home, that something had happened to Conde,

that he had blood all over his face, and that something had

happened to her house. She hung up and called back. 

Officers arrived at the house at 2:14 a.m. and found Petitioner

in the middle of the street, frantic. The officers did not notice

any injury to Petitioner or any blood on her person or

clothing.

When the officers went into the house they found Conde

sitting on the couch, with an injury to his head. They

searched the house to ensure that no one else was present. 

Paramedics entered at 2:20 a.m. and ascertained that Conde

was dead. From the blood coagulation and temperature and

rigidity of his body, they determined that he had not died

within the minutes prior to their arrival. It was later

determined that Conde died from blunt force trauma to the

head, caused by three to eight blows. The implement used

was a long, slender object like a stick, bat, or golf club. Any

healthy adult could have inflicted the injury, which the

coroner determined would have rendered him unconscious

almost immediately and resulted in death within 2 to 20

minutes. Conde was attacked where he was found, on the

couch. He bore no defensive wounds.

The officers’ search revealed that the sliding glass door

from the kitchen to the back yard was open, but they found no

signs of forced entry. The spa in the back yard was

uncovered, running, and warm. Broken glass, coins, and a

cordless telephone were scattered on the kitchen floor. A hair

clip, purse, and cell phone were on the kitchen counter. A

pair of sandals, a helmet, and a hat sat on the floor near the

couch where Conde died. A jacket and another hat were

found on a throw rug on the floor nearby. No blood was
LONG V. JOHNSON 7

found on any of those items. Two baseball bats near the door

appeared, because of blood spatter patterns on them, to have

been there at the time of the murder. Blood evidence was

found on the couch, all four walls around Conde’s body, a

table near him, the television, the curtains, and a door behind

the couch. But no blood was found in the kitchen, where

Petitioner had made the phone call after discovering Conde’s

body, or in the hall leading to the bedrooms.

The search of the house and garage, Petitioner’s and

Conde’s cars, the yard, the immediate neighborhood, and the

nearby storm drains yielded nothing more of evidentiary

value.4 The murder weapon was never found. But Conde’s

golf clubs and one baseball bat were not found, either; an

acquaintance previously had seen one club resting next to

three baseball bats near the door, and there had been a bag of

golf clubs in the garage.

Officers took Petitioner to a police station during the

investigation at her home. The officer who sat with her did

not notice any blood on Petitioner’s person or clothing.

5

4 The police did not search a strip mall, a school, or a YMCA (including

their trash dumpsters), which were located within a very short distance of

Petitioner’s house.

5 The absence of blood on Petitioner was significant because one of the

first officers on the scene testified that there was blood on the ground

behind the couch, which was difficult to avoid stepping in. Petitioner

testified that she went in and out of the house at least twice, ran frantically

throughout the house, and put her hands on Conde. At trial, she testified

that she pulled Conde’s body by the hand so hard that he “lifted up.” But

there were no bloody tracks in the house. Although Petitioner testified

that she removed her shoes and called 911 barefoot from the kitchen,

where broken glass was found, there also was no evidence that her feet

were cut.
8 LONG V. JOHNSON

Among other things, Petitioner mentioned that her house had

been ransacked and was a mess, although the police did not

find that to be so. Petitioner also said that she checked the

house and was worried when she could not find her children,

although she subsequently said that she was not worried

because she knew that they were with her ex-husband.

Police interviewed Petitioner on October 6, 2003, and

again on October 9, 2003. During the second interview,

officers confronted her about inconsistencies in her story and

contradictions between what she said and the reports of others

who were with her that day. Petitioner said that she

sometimes forgot things that happened when she was drunk

and admitted that she was “fuzzy” on some of the details of

the day. During both interviews, she told them that Conde’s

ex-girlfriend would have done something like this because

she had vandalized their property and had made threats

against Petitioner and Conde in the past.6

Petitioner’s account of the night of the murder was that,

when she returned from Dills’ house, she walked in and saw

Conde lying on the couch. She knew that something was

wrong, so she turned on the light and saw that he was injured. 

She carried two party hats inside with her and kicked off her

6 At trial, Petitioner suggested that either her ex-husband or Conde’s exgirlfriend may have committed the murder. Petitioner’s ex-husband

introduced evidence that he was asleep with his girlfriend and son at his

girlfriend’s parents’ house. His girlfriend testified that she slept on the

outside edge of the bed and that no one in the house was disturbed during

the night. Conde’s ex-girlfriend introduced evidence that she was on a

date that ended between 12:45 a.m. and 1:15 a.m. on the morning of

October 6, 2003, after which she dropped her date off at his home in

Whittier, about 30 miles from Petitioner’s home.
LONG V. JOHNSON 9

shoes as she entered.

7 According to Petitioner, Conde was

gurgling, so she thought that he was breathing and called 911

on her home phone. Although Petitioner was an emergency

room nurse experienced in treating head trauma, she did not

render aid to Conde because she was drunk and upset. She

ran around the house screaming, hung up on 911, ran outside,

then called 911 again. She then ran outside again, where

police found her. Petitioner later told the police that a

number of items were missing, including the shotgun she kept

inside her bedroom closet (which only the immediate family

knew about), her car keys,8

and the center console of what

Petitioner acknowledged was a cheap stereo. None of the

jewelry in the house, which was worth more than $10,000,

was taken, nor were the bass guitar or flat-screen television

that were sitting in plain view.

Petitioner’s story was self-contradictory in several

respects. For example, although she had told Dills that she

was still so angry that she could “kick [Conde’s] ass,” she

initially told police that she was happy to be home and happy

that Conde was there. She lied about the sexual encounter

with Dills. She testified that she had found her cell phone in

the bushes when Dills dropped her off, but told the police that

she could not find the cell phone. She also admitted at trial

that, during her interviews with police, she was not truthful

about the level of violence that she had displayed toward

Conde during their argument on the night of the murder.

 

7

 But the shoes were found facing the front door, not away from it.

8 Although Petitioner testified that she never found her car keys, the jury

reasonably could find that the keys with a shamrock on them, found

hanging in the kitchen, were hers, as she had shamrock tattoos and a

shamrock on her motorcycle helmet.
10 LONG V. JOHNSON

PROCEDURAL HISTORY

A California jury convicted Petitioner of second-degree

murder, a violation of California Penal Code § 187. After

denying her motion for a new trial, the state trial court

sentenced Petitioner to a prison term of 15 years to life.

Petitioner appealed her conviction and argued, among

other things, that the evidence was insufficient to establish

that she had killed Conde. The California Court of Appeal

affirmed the conviction. People v. Long, No. E039986, 2008

WL 4958575 (Cal. Ct. App. Nov. 21, 2008) (unpublished). 

In response to the sufficiency challenge, the court considered

“‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt,’” id. at *4 (quoting People v. Young,

105 P.3d 487, 501–02 (Cal. 2005)); accord Jackson v.

Virginia, 443 U.S. 307, 319 (1979), and explained at length

why the circumstantial evidence sufficed to permit a rational

jury to find Petitioner guilty beyond a reasonable doubt,

Long, 2008 WL 4958575, at *4–12. The court denied a

petition for rehearing. The California Supreme Court denied

review.

Having exhausted her claim before the state courts,

Petitioner filed a petition for writ of habeas corpus in the

federal district court. She again argued that she was denied

due process because the evidence was insufficient to prove

her guilt beyond a reasonable doubt. The district court held

that the state courts’ denial of that claim was not contrary to,

nor did it involve an unreasonable application of, clearly

established federal law as determined by the United States

Supreme Court, nor was it an unreasonable determination of
LONG V. JOHNSON 11

facts. Accordingly, under 28 U.S.C. § 2254(d), habeas relief

could not be granted, and the court dismissed the action with

prejudice.

The district court issued a certificate of appealability on

the sufficiency issue. Petitioner filed a timely notice of

appeal.

DISCUSSION

When considering Petitioner’s claim premised on

insufficiency of the evidence—an inquiry governed by

Jackson—we must view the evidence in the light most

favorable to the prosecution. Boyer v. Belleque, 659 F.3d

957, 960 (9th Cir. 2011), cert. denied, 132 S. Ct. 2723 (2012). 

Because this case arises in the context of a habeas petition

filed after enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), we owe a “double dose of

deference” to state courts. Id. at 964. That is, we must

resolve doubts about the evidence in favor of the prosecution

and, in addition, must examine the state courts’ decisions

through the lens of AEDPA. To grant habeas relief, “we

must conclude that the state court’s determination that a

rational jury could have found that there was sufficient

evidence of guilt . . . was objectively unreasonable.” Id. at

965.

The state courts applied the correct law, because they

examined the evidence under the Jackson standard. The

pivotal question, then, is whether the California Court of

Appeal, which issued the last reasoned state-court decision,

unreasonably applied Jackson in affirming Petitioner’s

conviction for second-degree murder. Boyer, 659 F.3d at

965.
12 LONG V. JOHNSON

Viewing the evidence in the light most favorable to the

prosecution, the California Court of Appeal reasonably held

that a rational jury could find, beyond a reasonable doubt, that

Petitioner murdered Conde. There was evidence from which

the jury rationally could find: (1) that Petitioner had

opportunity, because between 1:20 or 1:30 a.m. and 2:09 a.m.

(a period of 39 to 49 minutes), Petitioner could have struck

Conde in the head, washed herself in the spa and changed out

of her bloodied clothes, and disposed of the murder weapon

and clothes beyond the perimeter of the police search, before

calling 911; (2) that Petitioner had access to a weapon, such

as the missing golf club and third baseball bat; (3) that

Petitioner’s sustained anger at Conde created motive;9

(4) that

Petitioner’s lies to investigators evidenced consciousness of

guilt; (5) that Petitioner attempted to make it appear, falsely,

that a robbery had occurred in connection with the murder;

(6) that Petitioner was willing to settle arguments with

violence, such as her violent confrontation with Conde earlier

that day and her history of domestic violence against Conde

and her ex-husband; (7) that the intruder was known to

Conde, due to his lack of defensive wounds, the absence of

signs of forced entry, and the fact that Petitioner’s dog was

not heard barking on the night of the murder; and (8) that the

two people who, according to the defense, might have

committed the murder had solid alibis.

Although the evidence presented at trial could yield an

alternative inference, we “must respect the exclusive province

of the [jury] to determine the credibility of witnesses, resolve

9

Investigators found an empty champagne bottle and a cup in the trash

at Petitioner’s house. The champagne was being saved for Petitioner’s

birthday, and the prosecutor theorized that Petitioner became angrier when

she found that Conde had consumed the birthday champagne.
LONG V. JOHNSON 13

evidentiary conflicts, and draw reasonable inferences from

proven facts.” United States v. Archdale, 229 F.3d 861, 867

(9th Cir. 2000) (internal quotation marks omitted). And,

although the evidence was circumstantial, a conviction—even

for murder—may rest solely on such evidence. See People v.

Snow, 65 P.3d 749, 761 (Cal. 2003) (per curiam) (holding that

circumstantial evidence alone supported the defendant’s

murder conviction); see also United States v. Cordova

Barajas, 360 F.3d 1037, 1041 (9th Cir. 2004) (holding that

“circumstantial evidence alone can be sufficient to

demonstrate a defendant’s guilt”).

Were we the jury, we might have entertained a reasonable

doubt. Were we sitting as the reviewing court on direct

appeal, we might have found the evidence to be insufficient. 

But under AEDPA, which demands double deference, we are

limited to deciding whether the California courts

unreasonably applied Jackson. They did not.

AFFIRMED.

WATFORD, Circuit Judge, concurring:

I have grave doubts about whether the State has convicted

the right person in this case. Those doubts stem from the fact

that it would have been virtually impossible for the defendant

to commit the crime and eliminate all traces of her

involvement even if she had arrived home at 1:20 a.m., as the

State contends, rather than around 2:00 a.m., as the defendant

testified at trial. I am also troubled by the fact that the only

witness who placed the defendant at home as early as

1:20 a.m. never actually testified at trial. This witness’s
14 LONG V. JOHNSON

testimony was so critical—and the State’s case so thin—that

the trial judge said he would not even have allowed the case

to go to the jury without it. Yet the jury was left to assess the

credibility of this witness based on a cold preliminary hearing

transcript, rather than all the subtle and intangible factors

juries take into account when they evaluate live testimony,

because the witness died before trial commenced.

Despite these misgivings, I join the court’s disposition. 

As the court notes, one of the inevitable consequences of the

doubly deferential standard of review we must apply under

AEDPA “is that judges will sometimes encounter convictions

that they believe to be mistaken, but that they must

nonetheless uphold.” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)

(per curiam).